The Board of County Commissioners of Brevard County, Florida, met in regular session on May 2, 2000, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Pastor John A. Mitten of Victory Baptist Church, Port St. John, Florida.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

APPROVAL OF MINUTES

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve the Minutes of February 1, 2000, February 15, 2000, and March 2, 2000 Regular Meetings. Motion carried and ordered unanimously.

REPORT, RE: MAXWELL v. BREVARD COUNTY CASE

County Attorney Scott Knox advised he will be in trial next week regarding the Maxwell v. Brevard County case and will need a motion to designate Commissioner O'Brien as the representative of the County so he can sit through the trial.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to designate Commissioner Randy O'Brien as the County's representative regarding the Maxwell v. Brevard County case. Motion carried and ordered unanimously.

REPORT, RE: REGIONALIZATION CONCEPTS

Commissioner Scarborough advised Jacob Stewart from the Orange County Chamber of Commerce made a presentation to the East Central Florida Regional Planning Council; and the decision was that the Planning Council should play a role in Mr. Stewart's study. He stated not to have governments involved would be a faulty process; the Planning Council and respective staffs have a lot of information; implementation is a Planning Council type of event; and government activity should not be directed by the Chamber or a 501C3 group created by the Chamber, but should be through the Planning Council, so one government entity would not take precedence over another entity. He stated in the past Orange County was a greater partner than the rest because of its population; however, the population of all the other surrounding counties together vastly outnumber Orange County's population; and Brevard County is not that much smaller than Orange County in population. He stated dealing with the Planning Council in the study allows Brevard County to have a greater identification.

Commissioner O'Brien stated the Board should communicate with all three Chambers in the County on what is transpiring in Orange County; it should also communicate with the TDC, as it may have a different attitude on teaming up with Orange County for tourism and may want to be parochial; and it should encourage other committees in Brevard County to be a part of the realm of ideas and concepts, work together as one unit to move forward, and unite with Brevard County so no one is left out.

Commissioner Scarborough stated the gentleman who is doing the study made a presentation to a seven-county TDC; the TDC is more in tune to some of those things than others; and Mr. Stewart came to Brevard County and met with Chamber people, and the Chamber people have been to meetings in Orange County, so that is happening. He stated the Chairman received a letter suggesting the Board ask the consultant to come for a forum and invite the Chambers, all elected officials, the School Board, cities, etc.; but Brevard County needs to define its role as government because Mr. Stewart said there are main players such as the business community with the Chambers, government, and universities, hospitals, airport authorities, port authority, expressway authority, etc. He stated for the first time he felt Brevard County was defining a role and would get something more than a piece of paper; and if it does not get something that is substantially integrated into the Comprehensive Plan and Capital Improvements Plan through the region, it is not going to be a meaningful document.

Commissioner O'Brien stated Commissioner Scarborough can request to be appointed by the Board as the point person on the concept, then he could hold meetings with the three Chambers and TDC, the Port Authority, Melbourne Airport Authority, etc.; or the Board could call a workshop and bring all of them to the table to discuss the goals and objectives of getting to the regional concept.

Chairman Higgs stated from her perspective, the East Central Florida Regional Planning Council is speaking as the voice of the whole concept of planning and is trying to establish a relationship in the process that would further what the County is getting out of regional planning through the Council; and she would like to see that play out first before establishing any mini-select groups. Commissioner O'Brien stated he did not mean to establishing anything, but to open dialogue with those groups. Commissioner Scarborough stated Mr. McLouth with the Port is now with the Planing Council; he is willing to host a gathering the Board would call; and whether it is a small or large group, the Board needs to walk in there with some definition and understanding of how the Planning Council works.

Commissioner Carlson stated she agrees with the concept; she, Mr. Jenkins, and Ms. Weatherman will be meeting to establish a leaders forum; Brevard County needs to bring something to the table; and the leaders forum could be a prerequisite to the regional thing, either to get ideas of what the Board is going to do or do it in parallel.

Commissioner Scarborough stated Brevard County is going to be collecting data; the more data is has available the better it is going to be able to be put in the big picture of regionalism; and there is nothing wrong with working with Ms. Weatherman. He stated a number of different groups met with the consultant; whether the Board likes or dislikes the consultant does not matter because he will probably be a key player in it; and sooner or later, based on the invitation, the Board may need to invite him to Brevard County. Commissioner Carlson inquired if he would make the same presentation he gave to the East Central Florida Regional Planning Council; with Commissioner Scarborough responding he would make the full presentation to everybody the Board wants to invite; and it needs to bring in all the elements because if it is not inclusive, it will fall short in some areas. He suggested letting he and Commissioner Higgs work with the Planning Council for another month or so; and once the Council's role is defined for governmental entities, they will see how the other entities are going to play. Commissioner Carlson inquired if that should happen before the leaders forum; with Chairman Higgs responding yes, because the Board had concerns for a long time about what the East Central Florida Regional Planning Council does; and this is an initiative for the Council to play a significant role in establishing how it works, implementing it in the long run, and seeing if it can work in the whole area of planning for the future of the region. She noted they need to spend time doing that before moving forward on the project; and if the project is not appropriate for the Council to be significantly involved in both the planning and implementation, she does not know what the Council should do for the region. Chairman Higgs stated significant changes have been made; if the process goes forward without the Council, it is not going to be implemented, and the Council will greatly diminish and lose its whole function as a planning entity; so the Board needs to see if it can work; and if not, it will have other decisions to make.

Commissioner O'Brien stated for five years the argument has been that Brevard County pays upwards of $100,000 a year to be a member of the East Central Florida Regional Planning Council and the return is minute; so to have the Council review its tasks and the Board to be part of that process is important; but it has to say what are the goals and why is it here and get those answers.

Commissioner Carlson inquired when will the Board be able to get something together with the Port; with Commissioner Scarborough responding they are putting a letter together and will fax it to the people who were at the meeting; sometime this week Chairman Higgs and he will receive the letter; and if the letter is agreeable, they will ask Jacob Stewart and his group to meet with the select committee from the East Central Florida Regional Planning Council to see if they are agreeable to the Council playing a role instead of getting fragmented support from various counties and every county having a different role that was not defined. He stated Volusia County still wants to have its meeting like Brevard County did at the Port; and the Board has an opportunity to move forward with the invitation from Mr. Stewart to bring the consultant in and get the whole community involved at the Port. Commissioner Voltz stated regional planning should involve everybody and not just a few people. Commissioner Scarborough stated the dangerous thing is to leave a key player out because that player will not come to the table and the plan will fall apart. Chairman Higgs stated that is where that activity is at this time; and she and Commissioner Scarborough will keep the Board advised as activities take place.

REPORT, RE: ODYSSEY OF THE MIND CONTEST

Commissioner Carlson advised area schools won top honors in the Odyssey of the Mind Contest; and read an article stating Space Coast schools rattled the rafters at University of Central Florida's arena Saturday night recording four first place finishes in the Statewide Odyssey of the Mind finals and will be sending nine teams to the world finals next month. She stated the biggest winner was Merritt Island High School which won top honors in one category and placed second in another; and other top local finishers were Divine Mercy Catholic School, Cocoa Beach Junior/Senior High, Port Malabar Elementary, Apollo Elementary, Christa McAuliff Elementary, Hans Christian Anderson Elementary, Creel Elementary, and Long Leaf Elementary. She stated all first and second place schools will go to the international competition in Knoxville on May 31 through June 3, 2000; it is a tremendous accomplishment for the Space Coast; there were approximately 30 teams and Brevard County took one-third of the winnings which is an amazing feat for the schools; and congratulated all the participants, and wished them the best in their future endeavors.

Commissioner O'Brien stated it shows that District 2 has smart children; the big winner was Merritt Island High School; the other winners were Divine Mercy Catholic and Cocoa Beach Junior and Senior High; and they are all in his District. Commissioner Carlson explained an exhibit she watched of a shrinking structure.

REPORT, RE: TRASH BASH DAY AND SNARP

Commissioner Carlson advised April 18, 2000 is Trash Bash Day; she has included SNARP, Strategic Neighborhood Abatement and Revitalization Project, which has been very successful; and suggested Bobby Bowen explain the pilot program.

Code Enforcement Director Bobby Bowen advised SNARP is an acronym for a pilot program named Strategic Neighborhood Abatement and Revitalization Project; it is patterned after Orange County's project but adds revitalization which goes to the heart of what the program is about, not only helping communities rid their neighborhoods of junk vehicles, debris, unsafe structures, and other Code violations, but also to improve the quality of life and general health, safety and welfare of the community. He stated the program is an alternative to proactive enforcement; it took about three months to develop a strategic plan and coordinate the various agencies that would be involved in the project; and there are three phases to the project. He stated the first phase, at the request of the West Cocoa Homeowners Association was to meet and discuss concerns about the problems within the community; they realized that before they could proceed further they would need to involve the entire community and get their support for the project; that message was taken to the residents; and the cooperation has been overwhelming. He stated the second phase occurred on March 25, 2000 when all members of Code Enforcement, Commissioner Carlson and staff, employees, and management of Harris Sanitation met with members of the community and walked door to door handing out more than 630 flyers; and they were seeking voluntary compliance by April 15, 2000. He stated the third phase began the enforcement process on property owners who chose not to take advantage of the services offered to gain voluntary compliance. Mr. Bowen advised there is a close connection between enforcement of Code violations and crime control; communities that enforce standards of behavior and order can discourage criminal activities; Code Enforcement is a major player in law enforcement and community-oriented policing efforts; and the enforcement of Code violations is frequently the primary ingredient that is essential to neighborhood revitalization. He stated safe, healthy, attractive, and clean surroundings are part of what make a community a good place to live; Code Enforcement joined forces with West Cocoa Homeowners Association, Commissioner Carlson's office, Harris Sanitation, Florida Power & Light Company, Sheriff's community policing unit, Brevard Correctional Institution, Keep Brevard Beautiful, Solid Waste Department, and Brevard County Housing and Human Services Department to clean up, restore, and free that neighborhood of Code violations; all is going well and over 15 tons of trash and debris have been hauled away. He stated trees were cut from power lines, ditches were cleaned, many junked vehicles were removed and stored properly; and the process continues. He stated Housing and Human Services Department reported they mailed out six applications to property owners who wish to have unsafe and dilapidated structures torn down on Lime Street and A Lane; staff will continue to work with the residents of West Cocoa to help them revitalize their community; Merritt Island Tropical Park Civic League requested help; and he plans to meet with them tonight to map out a strategy.

Commissioner Carlson stated it is a tremendous project; she toured the area that will be impacted and could see the before and hopefully will see the after; it is making tremendous progress; and if the project can be duplicated in all other areas, it will clean up some things. She noted the partnership is phenomenal.

REPORT, RE: OPTIONS FOR AMENDING LANDSCAPING REGULATIONS

Commissioner Carlson distributed an article from Urban Planning, an American City and County document, called "Putting the Freeze on Heat Islands," pertaining to greening up parking lots, what having a lot of asphalt does to the heat index, and what it means in terms of smog and pollution. She stated she does not know if Orlando is looking into this, but she may send it a copy as it may assist in future planning for the City. She suggested it be brought back to the Board as an agenda item after staff reviews the item to determine if they can incorporate it into existing landscaping regulations; and inquired if a motion is necessary.

Chairman Higgs advised Commissioner Carlson can schedule it on the agenda when it is ready. Commissioner Carlson inquired if a motion is required to give staff direction; with Chairman Higgs getting a consensus from the Board that a motion would not be necessary.

REPORT, RE: AGENDA ITEMS

Commissioner Carlson advised of a memo from County Manager Tom Jenkins regarding agenda items currently submitted to the Board for approval which do not legally require Board approval; and recommended the item be put on the agenda for discussion by the Board.

Commissioner Voltz inquired what does it pertain to; with Commissioner Carlson responding items that are submitted to the Board for approval that do not need approval being omitted from the agenda to reduce the paper work. She stated Mr. Jenkins prepared a list of seven items; and requested the list be sent to each Commissioner and the item be scheduled on the agenda for discussion.

REPORT, RE: KEEP BREVARD BEAUTIFUL HOTLINE

Commissioner Voltz advised she has received complaints about the new hotline for Keep Brevard Beautiful; there is a misunderstanding of how it should function; and people are saying the deputy sheriffs should not be spending time and money picking up trash and should be out arresting people and stopping speeders. She requested the County Manager advise Commissioners how to respond to such complaints, which may include how much money is being spent on the program.

RESOLUTION, RE: RECOGNIZING FORMER COMMISSIONER JOE H. WICKHAM

Chairman Higgs read aloud the Resolution recognizing former Commissioner Joe H. Wickham and expressing condolences to his family. She presented the Resolution to Mrs. Wickham and David Wickham. She advised the Resolution was adopted at a prior meeting as a symbol of the Board's respect for Mr. Wickham; and thanked the Wickham family for all they have done for Brevard County.

David Wickham thanked the Board and citizens of Brevard County for the honor; stated they are proud of his father's accomplishments in the community; and stated he loved Brevard County and knew it had a wonderful and bright future.

Chairman Higgs advised Joe Wickham was an important part of the community and an example of what one person can do.

EASEMENTS, RE: BEACH RENOURISHMENT PROJECT

Chairman Higgs advised the Board approved the beach renourishment project; the Army Corps of Engineers needs to begin processing easements for the project; and some of the documents need to be signed certifying that Brevard County has the necessary lands. She inquired if it is necessary to come back to the Board for authorization to sign those documents, as the Board approved acquisition of necessary easements but did not specifically authorize her to sign the documents. She stated she will assume that if the Board takes action, the Chairman is authorized to sign the necessary documents for all projects even if the phrase "authorize the Chairman to execute" is not included in the Board action.

Commissioner Scarborough stated the assumption should be there unless there is specific direction to come back to the Board, because it can hold things up.

Consensus of the Board was that the Chairman is authorized to sign any documents regarding items approved by the Board unless there is direction to return to the Board for further direction.

RESOLUTION, RE: CONGRATULATING PALM BAY PIRATES BASEBALL TEAM

Brad Lloyd, Coach of Palm Bay High School Pirates Baseball Team, thanked the Board for honoring the young men who are a special and unselfish group that accomplished a tremendous feat in California. He gave a background account of how they were invited to the prestigious tournament, described each game and the outcomes, and introduced Assistant Coaches Greg McGrew, Carl Hanselman and Leon Irvin, and team members Brandon Ford, Eric Martinez, Tom Bean, Tyler Crump, Daryl Stovall, Matt Rightmire, Corey McGrew, Justin Stovall, Matt VanFleet, Chandler Irvin, Tim Nungesser, Jeff McGrew, Victor Cotto, and Johnny Goode. He stated Billy Rightmire and David Denowski made the National Classic All Tournament team; and Burt Clark not only made the Tournament team but was also named offensive MVP. He noted in looking at previous pictures of tournament teams, 90% of the All- Tournament Teams and MVP's are now playing professional baseball; and again thanked the Board for honoring the young men.

Chairman Higgs advised the Board is proud of what they have accomplished and offers a resolution in recognition of their achievement. She read aloud the resolution congratulating the Palm Bay Pirates High School Baseball Team.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution congratulating the Palm Bay Pirates High School Baseball Team for achieving the status of second ranked high school baseball team in the nation; and recognizing the accomplishments of the players, coaches and families. Motion carried and ordered unanimously.

Chairman Higgs presented the Resolution to Coach Lloyd.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE CREATING LAKEMONT ROAD WATER MSBU

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to grant permission to advertise a public hearing for May 23, 2000, to consider an ordinance creating the Lakemont Road Water MSBU. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, SECTIONS 62-1255 AND 62-1344 RELATING TO MAXIMUM RESIDENTIAL DENSITY IN RP ZONING CLASSIFICATION

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to grant permission to advertise a public hearing to consider an ordinance proposing changes to Section 62-1255 relating to consistency of the RP zoning classification with the Comprehensive Plan, and Section 62-1344 relating to maximum residential density of the RP zoning classification. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT OF ORDINANCES 9-2000 AND 10-2000 FROM CITY OF TITUSVILLE, RE: ANNEXATIONS

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to acknowledge receipt of Ordinances 9-2000 and 10-2000 from the City of Titusville, annexing approximately 9.75 acres into the City. Motion carried and ordered unanimously.

APPROVAL, RE: TDC CATEGORY E, CULTURAL EVENTS REVISED GRANT APPLICATION HANDBOOK

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve the TDC Category E, Cultural Events revised Grant Application Handbook which includes eligibility requirements, types of grants available, criteria for evaluation, instructions, and application forms. Motion carried and ordered unanimously.

AGREEMENT WITH YMCA OF BREVARD COUNTY, INC., RE: USE OF TITUSVILLE HIGH AND MADISON MIDDLE SCHOOLS' POOLS

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to execute Agreement with YMCA of Brevard County, Inc., for use of swimming pools at Titusville High and Madison Middle Schools; and authorize the Parks and Recreation Director to include any future Board approved contract clauses in the Agreement. Motion carried and ordered unanimously.

AUTHORIZATION TO SUBMIT GRANT PROPOSAL AND EXECUTE GRANT AGREEMENT WITH FLORIDA DIVISION OF FORESTRY, RE: FUNDS TO SURVEY ENDANGERED AND RARE SPECIES

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to authorize the Natural Resources Management Office to submit a grant proposal to the Florida Plant Conservation Program of the Florida Division of Forestry, and authorize the Chairman to sign the Grant Agreement for funds to survey endangered and rare species. Motion carried and ordered; Commissioner Voltz voted nay.

PERMISSION TO ADVERTISE REQUEST FOR PROPOSALS, AND APPOINT SELECTION COMMITTEE, RE: INSURANCE BROKERS FOR AIRCRAFT HULL LIABILITY, AIRPORT LIABILITY, AND CHEMICAL INSURANCE

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to grant permission to advertise request for proposals for insurance brokers specializing in aircraft hull liability, airport liability, and chemical insurance, and appoint Management Services Director Stockton Whitten or his designee, Mosquito Control Director Jim Hunt, and Risk Manager Florencia Fenton to the Selection Committee, to review proposals, conduct interviews, and prepare a recommendation for the Board. Motion carried and ordered unanimously.

GRANT APPLICATION TO DEPARTMENT OF COMMUNITY AFFAIRS, RE: COURT ACCESS TO COMPUTERIZED CRIMINAL HISTORY INFORMATION

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to execute Grant applications to Department of Community Affairs for electronic filing grant of $246,500 with no matching funds, and $228,539 with $57,135 matching funds under the Drug Control and System Improvement Formula Grant Program (Edward Byrne Memorial State and Local Assistance Program). Motion carried and ordered unanimously.

RENEWAL OF CONTRACT WITH DEPARTMENT OF REVENUE, RE: CHILD SUPPORT ENFORCEMENT

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to execute Contract GZ808 with Department of Revenue for renewal of funding Child Support Enforcement personnel and related office expenses from July 1, 2000 through June 30, 2001. Motion carried and ordered unanimously.

ACKNOWLEDGE RECEIPT, RE: INTERNAL AUDIT OF LAND DEVELOPMENT

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to acknowledge receipt of the internal audit of the Land Development Office for the period October 1, 1997 through September 30, 1998. Motion carried and ordered unanimously.

APPOINTMENTS/REAPPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, reappoint Brian Lally and Greg Popp to the Titusville-Cocoa Airport Authority with terms expiring July 7, 2001, and appoint Ron Pritchard and Tom McGill to the Marine Advisory Council, with terms expiring December 31, 2000. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve the bills and budget changes as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: REQUEST FROM RALPH McBRAYER FOR VESTED RIGHTS DETERMINATION

Chairman Higgs called for the public hearing to consider a request from Ralph McBrayer for vested rights determination to permit severance of a parcel of land in EU and AU zoning classifications on 2.93 acres in the Rockledge area.

Planning and Zoning Director Mel Scott advised in 1977, the applicant brought a survey to the Zoning Office and asked if the parcel would be able to pull a building permit for a single-family residence; staff at that time verified that the zoning was EU and the dimensions of the lot met the EU classification; so the answer was yes. He stated this situation illustrates a practice of the Zoning Office at that time which was to focus on the lot in question and not inherently look at where that lot came from or how it was severed from the parent parcel. He stated Mr. McBrayer had that assurance from the Zoning Office since 1977; a different issue was brought to his attention where a parcel had a billboard on it and was severed from the parent parcel in such a manner that the billboard was now located on a parcel which did not adhere to the setbacks and did not have proper lot dimensions; he was asked to look at that lot severance pursuant to Section 62-2102 which addresses alternation of a lot; and since it was the practice to primarily focus on the lot in question, he expanded on that provision through an interpretation statement which would better enforce the Code; and that is not only should staff look at the newly created lot to ensure it adheres to all provisions of the Zoning Code, but also the lot severance action in total including the fragment that is left behind. Mr. Scott advised he believes that is the spirit of the Code; that action in its totality should make sure all existing structures and dimensions of the remaining parcel adhere to the Zoning Code; and it was that position that prompted the vested rights application, because that is the avenue the Board has to give an applicant relief to be able to build a home on the severed portion of the property.

Ralph McBrayer advised he bought the property in 1977; before he bought it, he, the seller, and his realtor went to the Zoning Office to ask if he could build a house on the front parcel; and he would not have bought the property if he was not able to build a house on that parcel. He stated 25 years later he wants to build a house on the property, and has problems; and that is the reason he is requesting relief. He stated he is an innocent party; he bought the property thinking he could build a house on it; now he is told he cannot because of the Zoning regulations; but he has witnesses of his visit to the Zoning Office when he was told he could build a house on the property.

Commissioner Carlson requested the County Attorney's opinion on the vested rights issue based on the criteria on page 3, paragraphs a, b, and c.

County Attorney Scott Knox advised the Board sits in the capacity of a quasi-judicial body on this application; it has heard testimony which seems to indicate there was an act or omission on the part of the County, in the form of a verbal representation that the lot could be developed for a house in 1977; and the Board heard from the owner that he bought the property in good faith based upon that act. He stated the question is has there been a substantial change of position in reliance on that act or omission; typically if a house was going to be built five or ten years later, there would be a case for reliance in good faith; but 25 years later makes it fuzzier. Mr. Knox stated the basis for the act or omission was the interpretation of the Code; the Code is clear that a lot cannot be cut into a situation where the remaining portion violates the Zoning Code; and the interpretation of that was incorrect to begin with. He stated the owner relied upon the interpretation, but it was not a proper interpretation at the time it was made.

Commissioner Carlson inquired how would it work with other Ordinances that were changed over the 25 years, and would this application set a precedent; with Mr. Knox responding if for instance, the property was zoned commercial which precipitated the decision to buy it, that person is not entitled to commercial zoning forever just because he bought property that was commercial; so typically the law will say the person is not entitled to those same restrictions forever. Commissioner Carlson inquired what are the other choices if Mr. McBrayer does not get vested rights; with Mr. Knox responding Mel Scott's interpretation precludes him from building a house on the front lot and his only alternative would be to seek relief in the judicial system. Commissioner Carlson inquired if the parent lot also has a problem, and is there any association with the individual who owns the severed lot and the lot behind it; with Mr. Knox responding it is the same person. Mr. Scott stated there were several issues created as a result of the severance; and explained a map on page 8 of the Agenda Report, noting the parcel in question, the middle parcel with two cottages and a duplex on it, which is nonconforming because it is in EU zoning classification that allows one single-family dwelling, and the third parcel that was left undersized for AU classification.

Chairman Higgs inquired if the parcel when purchased was all Parcel 6; with Mr. McBrayer responding when he bought the property there were three parcels as shown on the Warranty Deed; Parcel 3 is on U.S. 1; there are two acres on U.S. 1 with no development that was an orange grove; the middle parcel has cottages which were built in the 1940's as fishing cottages; and the front parcel is the parcel in question and the one he was told he could build a house on. He reiterated that he would not have bought the property if the Zoning Office did not tell him he could build a house on it. Chairman Higgs inquired if the lot when purchased was all Parcel 6; with Mr. McBrayer responding it was broken up when he bought it. Mr. McBrayer stated the map is wrong because it shows Parcel 6 going south and it does not; and the property he bought goes from U.S. 1 to the river. Chairman Higgs inquired if there is an easement or other separation between his holdings; with Mr. McBrayer responding the person he bought the property from has a water easement across the property. Discussion continued about the official zoning map.

Commissioner Carlson inquired if Mr. McBrayer wanted to use the riverside property, could he combine the parcel with the cottages on it with the parcel on the river to meet the Code; with Mr. Scott responding the easiest action would be to re-aggregate the parcel. Commissioner Carlson inquired what would he be able to do on that parcel; with Mr. Scott responding EU is single-family zoning classification; to increase the density, he would have to apply for rezoning; but that would be an uphill battle because the character of the area is EU and AU. He stated another alternative would be to upgrade the structures on that parcel; and a lot of times those fishing cottages were demolished and replaced.

Commissioner Voltz inquired if the applicant plans to keep those structures; with Mr. McBrayer responding his plan is to leave the structures on the property; they are grandfathered in according to the people who live in that area and have those type of structures; and all he wants to do is build a house on the riverside. Commissioner Carlson inquired if Mr. McBrayer receives rent from the cottages; with Mr. McBrayer responding yes. Mr. McBrayer stated he does not understand why the property is cut in two when the surveys and other documents he has never showed that. Mr. Scott stated the lines are based on the Warranty Deed.

Chairman Higgs inquired what is the size requirement for EU-2; with Mr. Scott responding 12,000 square feet minimum lot size. Mr. McBrayer stated his Parcel A is 15,000 square feet.

Commissioner O'Brien stated the record shows Mr. McBrayer purchased Parcels 1, 2 and 3 as three separate parcels in 1977; the structures were built on Parcel 2 in 1948; he was told he could build a 2,000 square-foot structure on Parcel 3; and in 25 years the rules may have changed, but a person should have a reasonable expectation that that he can build when he buys a piece of property and is told by the government he can build on it. He stated it would be improper for the Board to punish him and make him pay more fees to get what is rightfully his.

Commissioner Carlson stated she agrees, but there is property that does not comply with the Code; and inquired if any action has been taken on the middle parcel with the cottages to fit the Code; with Mr. Scott responding no, they are nonconforming uses and are covered under specific provisions of the Zoning Code. He stated the nonconformity has been exacerbated by the severance. Commissioner Carlson inquired if allowing vested rights creates another nonconforming lot or would that be grandfathered; with Mr. Scott responding it would be grandfathered. Commissioner Carlson inquired if it would be on the books as a nonconforming lot; with Mr. Scott responding if the vested rights determination is granted, the parcel he desires to build a single-family home on would comply with the Zoning Code; but the act of creating the new lot would leave the cottages and duplex on a parcel that is nonconforming exacerbated by the new property line; and it does not meet setbacks and other issues. He stated it is the remaining parcel that was exacerbated by the severance, which, by his interpretation of the Code, prompted Mr. McBrayer to need vested rights. Commissioner Carlson inquired if staff is in the process of looking at all nonconforming lots; with Mr. Scott responding the way the Code reads, in his opinion, is when a lot is severed, staff has to look at the newly created lot and at the portion of the parent parcel that is left behind; and the severance needs to insure both of the parcels are in conformity with the Zoning Code or it cannot happen.

Commissioner Voltz stated she understands the 25-year issue about commercial property, but residential property on the river should not be an issue even 50 years later. She stated it is not the owner's fault; the map shows structures on the property; and it was an error by County staff back in 1977. She stated staff is doing that review now, but it did not happen back then, so the Board should approve the vested rights.

Commissioner Carlson inquired about the status of the middle lot; with Mr. Scott responding remedies for the middle lot are also embodied in the vested rights; if the middle lot also contained the property to the right, it would still be a nonconforming lot of record; creating the new lot exacerbated that nonconformity; and the Code says to expand, enlarge, or increase a nonconforming lot is not allowed. He stated if the Board grants the vested rights, it would also solve the middle lot's problems.

Chairman Higgs inquired if the actual severance was done in 1977; with Mr. Scott responding yes. Chairman Higgs inquired if there has been a change in the Code since 1977 that would have changed the status of the center lot so that the interpretation given in 1977 may have been accurate then but is inaccurate today; with Mr. Scott responding that is probably what has occurred since 1977; the Code is defined in more detail on how to address nonconforming lots; and he is not sure if the provisions on expanding and enlarging nonconforming lots were in the Code in 1977. Chairman Higgs stated the Code does change, which does not necessarily mean there is a vested right.

Commissioner Carlson stated as a quasi-judicial body she feels uncomfortable making a decision after hearing all the discussion and statements from the County Attorney; and inquired if Commissioner Scarborough had any thoughts on the issue; with Commissioner Scarborough responding the problem would be more perplexing if the ownership was not the same; in this case it is a matter of legal separation; and as an attorney, he never worried whether a person owned things through separate deeds. Mr. Knox stated that is a good point, but once the Board creates two separate nonconforming lots, one could be sold off to someone else. Commissioner Scarborough stated the sale is what triggers the division; but he could acquire a tract of land from multiple owners or one person and subdivide it; so he looks at it as ownership as opposed to how it was acquired, because if it is under one ownership, it is still a single entity owning different parcels. He stated if all the parcels were not under his ownership, the problem would be more profound; but since he owns all three parcels, all the Board is doing is dealing with paper and pretending it has a division with different owners. Mr. Knox inquired if a house is allowed on the parcel if it is treated as one parcel; with Mr. Scott responding no, there are already four units on that parcel in a single-family zoning classification.

Commissioner O'Brien stated Mr. McBrayer met with George Edwards on August 1, 1977; Mr. Edwards confirmed that he could build a minimum 2,000 square-foot residence on the 15,000 square-foot parcel facing the river; a letter from a deputy appraiser gives the estimated taxes on each of the three parcels; the Warranty Deed says three parcels; the survey has three parcels; and Mr. Edwards saw the surveys that included three parcels and informed Mr. McBrayer he could build a home on the parcel. He read some of the documentation contained in the Agenda Report regarding tax estimates, zoning classifications, and descriptions; and stated it has always been three separate parcels.

Commissioner Carlson stated anyone can go into the Clerk's Office and sever a piece of property at any size; they talked about trying to make sure there is some communication between the Clerk's Office and Zoning Office to ensure those things are feasible and fit in with what the Code is; and she understands it was done 25 years ago, but she believes in the phrase "buyer beware"; but the average buyer is not going to be privy to the fact that there was no communication, so that is a reason for going forward with this although she is concerned about setting a precedent by allowing it to occur after 25 years. Commissioner Voltz stated it can be handled on a case-by-case basis. Commissioner Carlson stated there may be other properties that come in with the same thing; they always put the Board in a tight position where it is supposed to be judge and jury; and it is not fair to the applicant and not fair to the County. She stated that is one thing the Board needs to wrestle with and make sure it does not happen in the future.

Mr. Knox stated in terms of precedential value, it seems there will be very few cases where someone buys a piece of property 25 years ago based upon an oral representation by a County employee which completely tortured the language in the Code; and it may happen next week, but he does not think it will happen very frequently and would not be much of a precedent.

Chairman Higgs inquired if there is a way to bring the center lot into conformity; with Mr. Scott responding if the other property is brought back into it, it would still be a nonconforming lot of record. Commissioner Carlson stated the only way to make it conforming is if Mr. McBrayer wants to get rid of the existing structures and build one home on it. Commissioner Carlson stated there are a lot of things the Board does not know about when it makes a determination on vested rights based on the three criteria; she would like to have zero nonconforming lots, but in the face of some of the issues and what the Board is doing, she would move for vested rights.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve vested rights determination request from Ralph McBrayer to permit the severance of a parcel of land in EU and AU zoning classifications on 2.93 acres. Motion carried and ordered unanimously.

Commissioner O'Brien stated the Board has a problem, which Commissioner Carlson said was caused by the Clerk not communicating with the Zoning Office; and inquired if the Board could pass an ordinance that would not allow people to sever property if it would make it nonconforming, and send the ordinance to the Clerk's Office with a request to not allow it to happen and check with Zoning first to make sure it is a legal division of properties. Mr. Knox advised the Ordinance exists that does not allow severance of properties that do not conform to the Code; it is the buyer's duty to check with Zoning to determine if the property can be used for a residence; and if it cannot, then that person should not buy it.

Commissioner Carlson stated if she goes to the Clerk's Office and say she wants to sever her property, there is no mechanism that would trigger going to the Zoning Office and asking if she can do that; so the Ordinance means nothing unless there is communication. Mr. Knox stated it is the buyer's responsibility to check that out before the fact, because the Clerk will just take the paper and record it.

Commissioner O'Brien gave a scenario about a family which severs property but does not build on it for 15 years, and later family members want to build and are told they cannot, so the Board has to work around the vested rights issues. He stated there must be a better mechanism that would alert the Clerk to send it to the Zoning Office for review within seven days or something.

Commissioner Scarborough stated Mr. McBrayer did take the time, came to the County, and bought the property based on information provided to him by the County; but if someone acts recklessly or almost in a fraudulent manner, there are other recourses available; the person who purchased the property could sue the seller; and there are other people responsible in the transaction besides the County. He stated in this case, the County became responsible because it gave information that the buyer relied on; and without that factor, it would not be here. Commissioner O'Brien stated sometimes it is not because people are reckless or careless, but because they do not know better. Commissioner Scarborough stated then they have a right to go to the seller who sold them something that is worthless.

Commissioner Carlson stated there needs to be a copy of the County's policy sent to the Clerk's Office, to let them know they need to notify Zoning if there is anything like this occurring. Chairman Higgs inquired if Commissioner Carlson wants to have the County Manager send a letter to the Clerk outlining the policy and clarifications that have been made. Commissioner Carlson stated the Clerk also needs a point person that the County office can talk to who knows what is going on.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to authorize the County Manager to send a letter to the Clerk of the Circuit and County Courts with copies of the County's policies, and request a point person.

Commissioner Scarborough advised he has been told anyone can take anything to the Clerk's office that is notarized and have it recorded, but when it gets to the Property Appraiser's Office, they will question it; and the recording clerk does not play the role of a title researcher. Commissioner Carlson inquired who would play that role; with Commissioner Scarborough responding nobody, and that is the problem.

Mr. Knox stated if someone takes a document to the Clerk's Office with a two-page legal description, they are not going to figure out where that property is, how big it is, or plot it out, then call Mr. Scott to tell him a 200 square-foot parcel is being severed from a bigger piece of property and will create a nonconforming lot. He stated the Clerk's Office is independent of the County and do not have to do that. Commissioner Carlson stated she understands it is a cooperative thing; and inquired if there is something legislatively that the Board can request; with Mr. Scott responding it would take an act of the Legislature to require all Clerks statewide to plug into their process the act of verifying lots and that lots be split in compliance with Zoning Codes and Future Land Use Maps of individual jurisdictions. He stated right now they do not have to communicate that; and it slows the process down, but there are other states that have communication between recording and zoning entities.

Commissioner Voltz inquired if a cooperative agreement with the GIS System would make a difference; with Mr. Scott responding they are currently sharing the same information, which is not the issue; the challenge is running the legal description that would have to occur at the Clerk's Office; or they could require a sign-off from the Zoning Office before documents are recorded, but that may require an act of the Legislature because Florida Statutes do not bind the Clerks to require those verifications. Commissioner Voltz stated that would not put an extra burden on the Clerk's Office, but the County staff will have extra work. Mr. Scott stated their workload would increase tremendously.

Commissioner Carlson inquired how often does this situation occur; with Mr. Scott responding they inform people dozens of times when they are at the final stage of the process of seeking a building permit that the plans they drew up and the investments they made are not good because the property they are looking to place the house on has been created illegally. Commissioner Carlson inquired how many cases like this case are seen a year; with Mr. Scott responding roughly 15 to 20 a year. Commissioner Carlson stated so it is not a once a year thing; but the question is whether it is worthwhile to go after legislation. She inquired if the people who come in and want to record something regarding their property are required to give a legal description, pictures of the lots, etc., and would it require legislative action to get more detailed information on a piece of property; with Mr. Scott responding yes.

Mr. Knox stated the only practical way to effect any kind of change in the policy is to have legislation that requires, at a minimum, recording of a sketch with legal description showing the dimensions of the property that is being carved out so it puts someone on notice that there is going to be a division of property which may trigger a zoning issue.

Commissioner Carlson stated as part of the motion, staff could send a copy of the current Policy outlining some of the difficulties and also the Board's intent to file a legislative request to do what Mr. Knox said which is to add additional information to every request of action on a particular parcel that is recorded at the Clerk's Office; and staff can draft something for next year's legislative package. Commissioner Voltz stated they tried to do that already.

Commissioner Scarborough stated the matter of recording deeds in Florida changed a few years ago and now they require a Parcel ID number so the Property Appraiser's office can get involved; that office is catching a number of things after recording; and the legislation does not have to be changed if there is a desire on the part of the Clerk's Office to bring in the Property Appraiser's Parcel ID numbers. He stated it is conceivable that things can be worked out mechanically with the GIS system; the letter can go forward not with the thought to change legislation, but to have Mr. Scott and the County Attorney meet with the Clerk's Office and Property Appraiser's Office to discuss the issues, because it is a disservice to a person who buys a parcel that is worthless.

Commissioner Carlson restated the motion to send the Policy to the Clerk, have staff schedule a meeting with the Property Appraiser's Office, the Clerk's Office, Planning and Zoning, and the County Attorney to talk about solutions, and bring those solutions back to the Board for informational purposes.

Commissioner O'Brien stated this is an effort towards consumer protection because it is an important facet for people.

Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 10:35 a.m., and reconvened at 10:45 a.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 22, ARTICLE II, SECTION 22-48, FLOOR ELEVATION AND FEE RESOLUTION

Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 22, Article II, Section 22-48 regarding floor elevation, and a resolution establishing a fee schedule.

Harry Fuller advised the ordinance as proposed deals with the effect and not the cause; consequently, it does a lot of things to try and solve the effect but not solve the cause. He stated requiring a grading plan with the building permit will eliminate the one-stop permitting system where septic tank permits are required because they cannot get a drainage plan until they get their septic tank elevation determined; so it will make it a two-step process. He stated it does not cover differences in elevation or houses level with or above the road; there are a lot of vague and nonspecific provisions that will cause confusion; problems will come up when someone tries to write the law instead of interpret it; and he will call Mr. Jenkins or the Commissioners to tell them the County is out of control and not following the ordinance. Mr. Fuller stated the ordinance will commit a lot of communities to Indian burial mounds and elephant graveyards with big humps in yards; rooflines will go up and down instead of the grade; aspect ratios will be messed up; and that is a terrible price to pay when controls can be put on the cause instead of providing effects. He stated it does not benefit the community; it does not create a beautiful community with all the mounds; and there are better solutions to the problem. He noted maybe HBCA wants to buy into it but he does not; it does not solve the problem and creates undesirable communities. He stated he has an interest in the community and would like it to become a well-addressed and desirable community, and elephant graveyards and Indian mounts are not the way to do it.

Commissioner Voltz advised she faxed a copy of the proposed ordinance to the HBCA which agrees with Mr. Fuller that it is a compromise after many meetings and that it is not pleased with the increase in cost for building; however, the HBCA recognizes the problems that exist in certain areas of the County and is pleased that the ordinance will make the property owner responsible for drainage after the certificate of occupancy is issued.

County Manager Tom Jenkins advised the cause is the State of Florida's Septic Tank Regulations which the Board has no authority to change or modify; the proposed ordinance was reviewed by the Home Builders and Contractors Association and the County's Building and Construction Advisory Board at least three times, debated, discussed, and amended; so what the Board has is an approach that is comparable to the approach that has been used by the City of Melbourne for many years and has been fairly uneventful. He stated he has not seen controversy or significant problems from the City's similar approach.

Commissioner Carlson inquired if the ordinance will affect the one-stop permitting process; with Permitting and Enforcement Director Billy Osborne responding no.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt an Ordinance of Brevard County, Florida, amending Chapter 22, Buildings and Building Regulations, Article II, Technical Codes, Division 1; specifically amending Section 22-48, entitled, Floor Elevation, to be above grade of adjacent thoroughfare; requiring submission of a drainage plan; establishing abutting finished floor elevation differential maximums in areas not within an engineered development; establish maximum variances from designed finished floor elevations in engineered developments; requiring boundary surveys with vertical elevations at application submittal; requiring as-built surveys with vertical elevations prior to issuance of a certificate of occupancy; authorizing building official to withhold certificate of occupancy until drainage system is operational; requiring property owner to maintain adequate drainage system after issuance of certificate of occupancy; providing applicability in unincorporated areas; providing interpretation of conflicting provisions; providing severability; providing an effective date; to adopt Resolution establishing lot grading review fee; and approve one position funded through the fees and necessary budget changes.

Commissioner Scarborough stated he respects Mr. Fuller and the work he has put into this issue; however, he will vote for the motion to get something on the books because sooner or later people will not want to go to meetings to discuss this item.

Commissioner O'Brien stated Mr. Fuller is his appointee to the Committee; and if this item is approved, it will add one staff person at $22,000 and increase construction costs between $100 and $500 for a single-family home.

Commissioner Voltz inquired if that person is necessary right now or can it wait until a determination is made on the number of permits; with Bruce Moia responding in order to implement the ordinance someone has to review the plans and as-builts as they come in as well as the grading plans; and the $15.00 extra fee would cover the cost of that person which did not seem to cause a problem with the home builders.

Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, SECTION 62-1946, TIME LIMITS FOR SECURITY MOBILE HOME

Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 62, Article VI, Section 62-1946, regarding time limits for security mobile homes.

There being no objections heard, motion was made by Commissioner Voltz, seconded by Commissioner Higgs, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Article VI, Section 62-1946 relating to time limits for a security mobile home as a conditional use; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VIII, SECTION 62-3206, TRAFFIC, PARKING AND LOADING REQUIREMENTS

Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 62, Article VIII, Section 62-3206, regarding traffic, parking and loading requirements.

Richard Higgins advised the Barefoot Bay Homeowners Association represents approximately 9,000 lot owners living in 4,660 homes and has about 5,300 registered voters; and the community has a lot to thank the Board for, including the south turning lane from Micco Road to U.S. 1, lane striping, and a smoother railroad crossing. He stated the most important thing the County did for them was the citizens academy sponsored by Commissioner Higgs and conducted by Peggy Busacca with Department heads as they learned how the system works and reorganized their committee structure. He requested approval of the community betterment project, one they have been pursuing for over a year, to prevent accidents and possible fatalities caused by inadequate parking arrangements at some places of business; and noted the LPA passed it unanimously after their presentation. He provided photographs to the Board of supply trucks blocking shoppers parking spaces, parking on U.S. 1 between no parking signs, two large objects blocking the vision of drivers going in and out of the store site, and problems for shoppers not buying gasoline. Mr. Higgins stated the cure lies in revising the Code that relates to traffic, parking and loading requirements; the Homeowners Association Industrial and Residential Committee reviewed staff's work and was extremely pleased; and if the ordinance is adopted, it will give them safe traffic control and flow on the site for residents of Barefoot Bay to buy gas, milk, and other necessary items. He stated the revised wording states "there will be adequate space for standing, loading, and unloading service vehicles in order to avoid undue interference with public use of streets, alleys, or required access aisles and spaces for traffic parking areas."; and requested the Board pass the ordinance.

Mike Cunningham opposed the ordinance as written and stated more study is needed; enactment, as it is, can and probably will create negative impacts throughout the County; one establishment is being targeted to serve a small section of County residents with restrictions that will apply to all establishments in the same category; and it is being done without total examination of the facts. He advised of a store a mile away that did major rehabilitation due to hurricane damage that was almost identical to the subject store; and stated he did an unofficial survey of 15 similar stores and found that 13 owners did not know what he was talking about, one said he thought he heard something about it, and one was vehement and said he did not hear about it but someone will hear from him if they tried to force it on him. He stated the ordinance projects an action into the future with no experience or criteria to base it on; it is unfair for anyone to ask the County to regulate a business for a small group when a much larger population is concerned, which needs to have its ideas and input addressed; and requested the Board not enact the ordinance without further study.

Chairman Higgs asked staff if the provisions of the proposed ordinance are consistent with neighboring municipalities and will existing businesses or new businesses be affected by it; with Bruce Moia responding the ordinance would affect new construction or existing facilities undergoing major modifications; some of the language was borrowed from municipalities; and staff studied a group of retail uses that get deliveries throughout the day and significant amount of traffic from the public, and selected those uses that had both and fell under 5,000 square feet to require a loading space.

Commissioner Voltz stated a zoning issue that will be coming up does not allow anything on the back part of the property except emergency exits; and this ordinance may prevent trucks from delivering at the front. She stated certain convenience stores have their own designs for their buildings; and they would have to change things to meet the requirements. She noted people with property considered for a convenience store would have to rearrange things to put the store on the site; and inquired if there is a way to address current commercial parcels, and if the ordinance will affect the owners. Mr. Moia advised most of the plans being reviewed by staff now have accommodated this requirement because they realize they need to provide space for trucks to load and unload without interfering with the general public visiting their establishments; and it would not affect current parcels unless they come in with significant modifications to the site. Commissioner Voltz stated she understands there is a problem that needs to be addressed, but she does not know all the ramifications of the ordinance and feels uncomfortable passing it at this point.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt an Ordinance of Brevard County, Florida, amending Chapter 62, Article VIII, Site Plans; specifically amending Section 62-3206, entitled, Traffic Parking and Loading Requirements; requiring adequate space for standing, loading, and unloading service vehicles; prohibiting loading facilities that make it necessary or possible to back directly into a public street; requiring retail use buildings 5,000 square feet or less in a commercial zoning designation, having an average annual daily trip generation of over 100 trips per 1,000 square feet of gross floor area or over 100 trips per fueling position or similar unit provide a loading space; providing applicability in unincorporated areas; providing interpretation of conflicting provisions; providing severability; providing an effective date.

Commissioner O'Brien stated he cannot support the ordinance because convenience stores that become inconvenient because they choose to allow delivery trucks to park in front of their doors or across parking spaces will lose customers; the restrictions would apply Countywide to convenience stores, fast food restaurants, banks, Walgreens, Eckerds, and small restaurants; those establishments all have dumpsters on their properties; so delivery trucks could pull up to the dumpsters and not block traffic. He stated it is not a huge problem anywhere in the County except at one location; it does not need further regulation; it is commendable that County staff worked with other governments to see what they did and decided it should have regulations also; but actually the opposite should be true, that if the County does not have regulations, the cities should take theirs off the books and start reducing regulations instead of increasing them on a regular basis. Commissioner O'Brien stated if the problem is trucks parking on the right-of-way, that is an enforcement problem; people can call the Sheriff or police department; and if enough store owners complain about the size of the delivery trucks, the companies could send smaller trucks that fit on the property. He opposed more regulation that will affect every convenience store built in Brevard County as well as other establishments.

Commissioner Scarborough stated the ordinance addresses activities on the streets and alleys to avoid undue influence with public use of those streets, alleys, and access areas; and it prohibits backing into public streets or using those for maneuvering. He stated major corporations build those establishments and know how to design them to not cause a potential traffic hazard; and that is not unreasonable to require.

Chairman Higgs inquired who will be affected by the ordinance and what will they be required to do; with Mr. Moia responding it requires putting a loading space on the site on the side or rear of the facility so service vehicles can load or unload without backing into the street, parking in the right-of-way, or blocking the driveways, and it will leave parking for patrons. He stated it will affect new businesses and any facility that does significant modification; and those are limited to high turnover and fast food restaurants, gas stations, convenience marts with or without gas stations because they are normally under 5,000 square feet and generate the trips noted in the ordinance. Chairman Higgs inquired if the ordinance deals with the size of a business that was not covered by the current site plan Ordinance; with Mr. Moia responding currently the site planning Ordinance says over 5,000 square feet has to have loading space.

Commissioner Carlson stated it also gives flexibility on the site plan to accommodate the loading and unloading area because it does not delineate how many square feet are required; with Mr. Moia responding the current language is specific; and the existing criteria is 14x30-foot space with adjacent loading and maneuvering area of 250 square feet. Commissioner Carlson inquired if that is a proven equation for those businesses; with Mr. Moia responding it seems to work.

Commissioner O'Brien reiterated previous statements that it is not a major problem; stated he has never gotten a phone call or letter from anyone about it; the Board is looking at a single place with a problem and trying to solve a problem with more regulation that affects other businesses; and truck drivers are well skilled and trained to maneuver their trucks with utmost safety.

Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioners O'Brien and Voltz voted nay.

DISCUSSION, RE: BOND FINANCING CHARTER AMENDMENT REFERENDUM

Commissioner O'Brien advised he read all the documents, heard all the arguments, and will support a resolution to put the charter amendment on bond financing on the ballot word-for-word as originally proposed. He stated citizens of Brevard County will understand the proposition and be aware of the consequences if they vote in favor of the proposal; some people may say they are tired of government borrowing money and spending it, and this is their way to change the way government does business; but if the amendment passes that would require government to put every bond issue on the ballot, within a year people will get tired of going to the polls to vote on those things, and a very small percentage of the population will be making the decisions for the masses. He stated if those people vote down all bond issues, nothing will get done, and streets will not get built; people in Palm Bay can say no to building a road in Port St. John; people in Titusville can say no to four-laning Dairy Road South; and before long, people will come back to the Board requesting the amendment be rescinded and go back to doing business as a representative government. He stated this amendment says explicitly what it will do; so it should be put on the ballot as proposed.

Commissioner Scarborough suggested the County Attorney explain the concerns with the original proposals, options to consider, and the pros and cons to frame the issue for those who are watching the meeting on television.

Commissioner Voltz stated she agrees with Commissioner O'Brien; the Board needs to trust the citizens; and if they make a decision to tie the hands of the Board, that is their choice. She stated the other two options, excluding and including commercial paper, are confusing and would cause everything to get turned down; and she does not agree with the option of not putting anything on the ballot.

Chairman Higgs advised the County Attorney and Mr. Watts believe there are difficulties with the ballot summary; the ballot summary summarizes what is in the actual amendment to the Charter; and if the changes Mr. Knox suggested are made to the ballot summary, it would more accurately reflect what is actually in the Charter amendment. Commissioner Voltz inquired if it reflects what the citizens signed; with Chairman Higgs responding it would make sure what people see on the ballot actually reflects what is in the amendment.

County Attorney Scott Knox advised he and Mr. Watts had problems with this proposal from the standpoint of constitutionality; Mr. Watts felt it was probably appropriate and fell within the range of constitutionally permissible amendments requiring referendum approval of every kind of bond issue and every kind of borrowing; and he thinks it is totally unconstitutional, so they have a difference of opinion. He stated they both agree the ballot language in the original proposal does not describe what the amendment does, so he tried to correct that which was presented to the Board on March 21, 2000. He noted if the ballot language is not corrected, then the amendment, even if it passes can be thrown out later. He stated the proposal set forth in the memorandum to the Board was to adopt the original proposal as submitted, but he should have clarified that by saying with corrected ballot language; however, the Board can do it with the original ballot language, but it will create some problems.

Mr. Knox advised the other two alternatives that were modified did several things; one limited the referendum to an affected area; and the reason for that is, for example, that it would not be appropriate for everyone in the County to vote on whether or not a bond issue should be issued to expand a water system in Mims, as there may be constitutional challenges on that ground as well. He stated they also provided a definition of non-ad valorem tax revenues which would require referendum approval wherever citizens as a whole are participating in the source of revenue; for example, a sales tax would have to undergo referendum approval, whereas an impact fee, which is only paid by new purchasers of homes, would not, since not everybody is involved in those kinds of payments; so there is a definition that includes certain sources of revenues and excludes other sources of revenue. He advised Mr. Jenkins asked him how commercial paper would be affected; and he suggested if there is going to be commercial paper impact as a result of the change, the Board may want to consider it as an exemption to the referendum requirements. He stated commercial paper is used constantly year-by-year; so that is a third alternative; and the last alternative is to not put the original proposal on the ballot at all.

Maureen Rupe stated she cannot believe that Commissioner O'Brien would be so irresponsible as to suggest putting something on the ballot that would throw the whole County into chaos. She stated while she was on the Charter Review Commission, the group that formed the Home Rule Charter Committee had absolutely no doubt that the amendment was considered unconstitutional; they were told that by at least three attorneys; but the Committee brought it forward irresponsibly through a petition. She stated the 16,000 people who signed the petition are owed an apology by the PAC because they were shown a proposal that was known to be unconstitutional; and when it was brought to the Board, the Board should have taken the advice of Mr. Knox and returned it to the PAC to take to court. She stated every action of the Board since has made the situation worse; no issue has ever concerned her as much as this one; and if it goes through, there should be an amendment put on the ballot whether to have a Charter at all if it is going to be used by groups to the detriment of Brevard County. She stated if this proposal is put on the ballot, it will be bad government; and time will show it.

Charles Moehle stated there are a lot of people, including himself, who agree the initiative is warranted; the voters chose to have a Charter government so they could more closely govern their own destiny as opposed to someone at the State level doing it; it is completely American and good government; and he is offended by the remarks of Ms. Rupe. He stated the Board should choose Option 3 that places it on the ballot as originally petitioned by 16,000 citizens; the Commissioners should quit denying their constituents the right to petition government for a redress of grievances; it is part of the First Amendment of the Constitution; and they have a right to do that, and the Board has a duty to listen. Mr. Moehle stated it is part of representative government, part of the Constitution, and part of what the Commissioners took an oath to uphold; there are real concerns about putting future generations into indebtedness they have no control over; and there is an underlying feeling that government should not put itself in debt more than ten years because it is enslavement of future generations. He stated some Commissioners said they were afraid people would not know what they would be doing when they vote; and inquired if they did not know what they were doing when they voted the Commissioners into office. He stated the Board should trust the people and let them decide; Brevard County has a high degree of people who are interested in their government; they want the Board to work efficiently, do not want to be taxed to death, do not want burdens for things they cannot afford, and want a better say in their government; and they are at their limit of taxation and burden, particularly burden on future generations.

Commissioner Scarborough advised when someone reads the ballot summary, it should accurately reflect what that person is voting on; the Board is not saying people are less intelligent because people of Brevard County are some of the most intelligent people in the entire State; but the Board has a responsibility to give them accurate and complete information on what they are voting for or against. He stated the other problem is constitutionality; there is a fundamental flaw in the Charter that does not require review of proposed amendments; the State has a court review before it proceeds to being on the ballot; and since that review is not required on the local level, the Board had its attorney and another attorney review the proposed amendments. He stated they are not imaginary problems when dealing with an invalid law that could be challenged and could be disruptive; and described the problems with the EEL's referendum. Commissioner Scarborough stated taking those things and understanding them are difficult even if everyone buys off on them; but when three attorneys say there is a problem, it would be irresponsible and reckless for the Board to say there is nothing wrong. He stated there has been no consideration of the impact on cities; and requested Mr. Jenkins elaborate on that issue.

County Manager Tom Jenkins advised he received an inquiry yesterday if the issue was given to the cities for their input; the Board provides many services and facilities on a Countywide basis; and anything that would happen in the County could have an impact on some of the cities, so the question was asked. He stated when the Board considers adopting an ordinance, it gives cities 90 days to provide input; and at this time, the proposed Charter amendments have not been given to the cities for input. Commissioner Scarborough inquired if there has been discussion with the cities; with Mr. Jenkins responding he is not aware of any.

Commissioner Voltz inquired if Mr. Watts disagreed with Mr. Knox's opinion that the proposed amendment was unconstitutional; with Mr. Knox responding he did say that earlier. Commissioner Voltz stated she would like to postpone a decision on the amendment until later in the meeting so she can review the other paperwork Mr. Knox will provide her.

Chairman Higgs advised the memorandum of law from Mr. Watts, who was the attorney for the original Charter Review Commission, gives some guidance in addition to the guidance given by Mr. Knox regarding whether or not the amendments were constitutional; the Board did not want to make that decision but the court said it had to do it; and to determine what to do, she reread Mr. Watts' memo which is clear as to what he feels are defects in the ballot summary. She stated the ballot summary has to reflect the contents of the amendment; Mr. Watts said, "It is clearly and conclusively defective. The ballot summary is defective under the Statutes in two respects"; so she cannot vote today to put the amendment on with the ballot summary that was submitted. Chairman Higgs stated she does not think it is a good amendment, and people should be advised not to vote for it; but it should go forward on the ballot to follow the Charter and State law, and because the citizens signed the petition.

Commissioner Scarborough advised the amendment would go on the ballot in November; the ballot language has to be given to the Supervisor of Elections by August; and he would prefer to send it to the cities to provide input whether they are not interested or want the Board to do it. Chairman Higgs stated the cities could provide meaningful input regarding the effect of the amendment, but the question today is whether or not to put it on the ballot, which the court said is the Board's responsibility.

Commissioner Scarborough stated he would suggest telling the cities the Board has a consensus to proceed with the original proposal with a change in the ballot summary language, and request their comments regarding the impacts as they see it. He stated it may not get replies, but it will have gone through the gesture and made a statement of where it is going, if that is where the Board chooses to go.

Commissioner O'Brien stated the cities can make all the comments they want regarding the impact of the proposal if it passes, but if the public says yes, that is the route the Board has to go; there will be an impact on every citizen in the County; if the Board elects to put it on the ballot, there will be great public debate; but it is time to let the people choose. He suggested Ms. Rupe create a Charter amendment to get rid of the Charter and get 16,000 signatures if she really feels that way, and bring it to the Board; and if it is worded within reasonable parameters, he would support putting it on the ballot. Chairman Higgs stated Ms. Rupe is not the first person who raised that issue because the frequency of amendments raises the question if that is the way to go; people have the absolute right to propose amendments, not only to the Charter, but amendments to ordinances, etc.; and although she does not think it is a wise thing to do, there is reason to go forward. Commissioner O'Brien state the effects of the amendment are not wise and could be detrimental to the County; but it is a question that got 16,000 signatures and should be a public debate rather than the Board's debate about the effects it will have.

Chairman Higgs stated because the time frame is to go on the ballot in November, the Board does not have to make a decision today; there seems to be some consensus that if the ballot language is changed to a correct summary, it should go forward; but she would like to have the Board take a position then give the public the opportunity to comment.

Commissioner Voltz stated once it goes to the ballot, she will vote no because of what it will mean to Brevard County; nevertheless, it is up to the citizens to vote it up or down. She stated she has always worked with a charter, so the Charter is not an issue; it is fair for citizens to petition their government to change things; and whether the Board likes the change or not is not important.

Motion by Commissioner Voltz, to support going to referendum on the proposed bond financing Charter amendment with the new ballot summary language which does not alter the original amendment; and to send notice to the cities asking them for comments.

Commissioner Higgs inquired by what date should the responses from the cities be received; with Commissioner Voltz responding August 1, 2000. Commissioner Scarborough suggested July 1 in case there is something significant to respond to. Commissioner Voltz agreed with July 1, 2000. Mr. Jenkins stated the first meeting is July 11, 2000; with Chairman Higgs responding it can be put on the Agenda for July 11, 2000 meeting.

Chairman Higgs called for a second to the motion. Commissioner O'Brien inquired if the motion refers to the original language as written with no changes; with Chairman Higgs responding it will be the original language of the Charter amendment. Commissioner O'Brien stated the wording is, "Shall the Brevard County Charter be amended to require voter approval for the issuance of bonds or other evidence of indebtedness unless authorized by residents within municipal service benefit units regardless of the amount borrowed except for necessary repairs because of damage by disaster or emergency, or refinancing to reduce the cost of debt service in the County's overall indebtedness?" He inquired if that is what will be sent out; with Commissioner Voltz responding no, the ballot summary language will say, "Shall the Brevard County Charter be amended to require the County Commission to receive referendum approval before borrowing any amount of money; to eliminate certain exceptions from the requirement that the County Commission obtain referendum approval prior to borrowing money; to create a new exception from referendum approval for financing secured by municipal service benefit units; and to eliminate indexed ceilings on dollar thresholds established for lease purchase?" Mr. Jenkins stated the amendment to the Charter is the original amendment; however, on March 21, 2000, the Board received revised ballot summary language in order to make it legal. Commissioner Voltz stated the ballot summary says the same thing, but makes it legal. Mr. Jenkins noted the Charter change will be the same as originally proposed by the Home Rule Charter Committee. Chairman Higgs stated the ballot summary will reflect more accurately what Messrs. Watts and Knox both think to be the content of the amendment. She stated the ballot language is 75 words or less; the amendment may be many more words; the summary as proposed is not reflective of what is actually in the amendment; so the summary has been changed to accurately reflect what the Home Rule Charter Committee proposed.

Mr. Knox explained the handout relating to the original proposed amendment, options, and ballot summaries. Commissioner Voltz stated the language of the amendment is not changed, but the ballot summary language is changed to be more reflective of exactly what is going to happen. Mr. Knox stated the ballot summary describes what happens with the changes originally proposed.

Commissioner O'Brien stated the original proposal that was brought to the Board reads, "Shall the Brevard County Charter be amended to require voter approval for the issuance of bonds?"; the County Attorney's summary says, "Shall the Brevard County Charter be amended to require the County Commission to receive referendum approval before borrowing any amount of money, bonds of any amount of money, or other evidence of indebtedness. To eliminate certain exceptions from the requirement that the County Commission obtain referendum approval prior to borrowing money. Eliminate certain exceptions, regardless of the amount borrowed except for necessary repairs because of damages after emergency"; and inquired why are certain exceptions being eliminated. Mr. Knox stated that is what the effect of the amendment is, but it does not say that in the original ballot summary, which is why it is defective. Mr. Jenkins stated there are restrictions in the current Charter that the Board cannot borrow more than $15 million in General Revenue fund unless it goes to referendum. Commissioner O'Brien inquired if "eliminate indexed ceilings on dollar thresholds" means to eliminate the tax cap that is presently on there; with Mr. Knox responding the proposed amendment says to delete 5.3.4 indexed ceilings; the original ballot language has no indication that it was done in the amendment which is why it is defective; and he has put that in the ballot summary to indicate what will be accomplished by the amendment.

Commissioner Voltz stated the Committee asked to delete the entire section on indexed ceilings; the ballot language was changed to include that by saying, "to eliminate indexed ceilings on dollar thresholds established for lease purchases"; the Committee did not say anything about lease purchases, but that is the only thing the indexed ceilings are used for; with Mr. Knox responding that is the only thing it applies to; there is a million-dollar cap on lease purchases; and it increases by the CPI every year; so what their proposed amendment says is remove the CPI index so it is going to be a million dollars.

Chairman Higgs advised the original language of the ballot summary talks about the Charter being amended except for necessary repairs because of damage by disaster, etc.; the Board has that power today; so by indicating that it is a change, it inherently makes the ballot summary defective; with Mr. Knox responding that was not changed by the original Home Rule Charter Committee proposal. Chairman Higgs stated that is right, so indicating it is a change makes the summary language defective; with Mr. Knox responding that is one of several reasons why it is defective and why it had to be changed.

Commissioner O'Brien stated the second sentence says, "to eliminate certain exceptions from the requirement that the County Commission obtain referendum approval prior to borrowing money"; and inquired what is being eliminated and what are certain exceptions; with Mr. Knox responding there were exceptions to the borrowing requirement; and the Board did not have to get a referendum for projects mandated by judicial decree, self-liquidating projects, utility or other enterprise funds, road project funds funded by gasoline taxes, etc. Commissioner O'Brien inquired if that is Mr. Knox's way of saying other evidence of indebtedness; with Mr. Knox responding no, he is saying those exceptions that existed in the prior Charter before this proposal came forward are now being eliminated in paragraph 5.3.3. Commissioner O'Brien inquired if that was the intent of the original restriction on borrowing money; with Mr. Knox responding that is exactly what they proposed.

Chairman Higgs stated since that option was not on the Agenda, the item could be tabled for one week so everyone will have an opportunity to review item-by-item and other people can decide if the County's summary reflects the content of the amendment. She suggested Mr. Knox's summary language be sent to the Home Rule Charter group. Commissioner O'Brien inquired what is wrong with putting on the ballot word-for-word what the Home Rule Charter Committee wanted; with Mr. Knox responding he and Mr. Watts agree it does not reflect what is in the amendment being proposed by the group; therefore, it is constitutionally defective and does not provide notice to the people who are going to vote on it; so anyone can invalidate it if it is passed. Commissioner O'Brien inquired if the County's wording makes it constitutional and it would pass a constitutional test; with Mr. Knox responding yes, the ballot summary he prepared will put voters on notice what they are voting on, whereas the other one did not. Commissioner O'Brien requested a week to consider it. Mr. Jenkins advised Commissioner O'Brien will not be here for two weeks; and Commissioner O'Brien suggested three weeks.

Commissioner Scarborough stated the Board has until August to get the ballot language to the Supervisor of Elections; as soon as it makes a decision, there will be others who will come forward; and he has a feeling it will be seen by the courts because things that were clear to him at the beginning ended up creating a quagmire.

Chairman Higgs noted it could be challenged before it even gets on the ballot. Commissioner Scarborough inquired if someone would have standing if the Board puts something on the ballot; with Mr. Knox responding if a citizen does not agree with it, that person can file suit. Commissioner Scarborough inquired if the Board decides to put it on the ballot on July 11, 2000, could Ms. Rupe and a group come forward and sue the County; with Mr. Knox responding yes.

Commissioner O'Brien inquired if the Board wants to continue the item to the last meeting in May; with Commissioner Voltz responding there was a motion on the floor, but there was no second.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to table discussion on the bond financing Charter amendment referendum until May 23, 2000. Motion carried and ordered unanimously.

APPROVAL, RE: POLICY BCC-56, BUDGET AND FINANCIAL POLICY

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Policy BCC-56, Budget and Financial Policy. Motion carried and ordered unanimously.

REQUEST FOR REDUCTION OF FINES AND RELEASE OF CODE ENFORCEMENT LIENS, RE: 1380 SCORPIOUS COURT, MERRITT ISLAND

Timothy Williams representing the property owner, which is family trust controlled by Larry Howard, advised the property was originally occupied by Mr. Howard's son; the son had certain renovations done to the kitchen and bathroom, and installed a solar heater; the work was done by licensed contractors; but in 1996 he received a Code Enforcement summons and learned that his contractors had not pulled the proper permits and that the prior owner of the property had illegally extended the seawall about six feet into the canal. He stated the son did not respond to Code Enforcement quickly enough, and fines were assessed; and the fines accrued to $8,100 on the first case and $8,850 on the second case. Mr. Williams advised Mr. Howard moved into the house at the end of 1996 and started to correct the violations; they were all corrected by October, 1997; among the things he had to do was move the seawall back six feet towards the property at a cost of approximately $22,000; and he applied to the special master for reduction of the fines. He stated the special master recommended $500 plus $260 costs in each case on June 17th; the Board's approval is required to approve the special master's recommendations; but when Mr. Howard got the special master's recommendation, he was under the impression the fines would be reduced automatically without further action on his part. Mr. Williams advised Mr. Howard put the property up for sale, got a contract on it, and when it came to closing, he was told the liens were still on the property; he set aside money from the closing which was inadvertently paid to the County; so the liens and fines were paid to the County before the special master's recommendation was acted on by the Board; consequently, they are requesting the fines be reduced in accordance with the special master's recommendations and the money paid over and above the recommended fines be refunded.

Code Enforcement Director Bobby Bowen advised the two cases were combined by the special master who made a recommendation on both cases at the same time; Case #96-0998 took about a year to come into compliance; and Case #96-1997 took about a year and a month to come into compliance. He stated he and Assistant County Attorney Cliff Repperger reviewed the audio tape of the hearing and tried to understand why the special master made such a substantial reduction of about 92% in both cases; but they were unable to understand it, and the special master did not make it clear how he arrived at those figures.

Assistant County Attorney Cliff Repperger advised there was not much basis for the special master's recommendation; there was no mention of hardship on the part of the respondent; the special master did not take due diligence into consideration; so there was not much mentioned on the tape about why the fine was reduced so substantially. He stated the special master did make it clear that there would need to be another proceeding and that the respondent would need to come before the Board before the reduction was final; that was very clear on the tape; and it was discussed between the respondent and the special master. Commissioner Voltz inquired if it was the father or son who knew the Board had to approve it; with Mr. Repperger responding the father.

Commissioner O'Brien stated the Board is trying to make a decision based on a few comments on a piece of paper; it was not at the special master hearing and does not have all the evidence which started the fines to accrue; both the father and son knew they had violations; and now they are coming back after the fact, saying they fixed them, and asking the Board to give them a break. He stated they were told in September, 1996 to come into compliance; October 1997 they finally got around to it; and it screams in the face of the public that they will do what they want to do. He stated the County spent a lot of time and money on these cases; now the Board is spending time and money for the same process; and suggested no further action be taken.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to take no action to reduce the fines and release the Code Enforcement liens on property located at 1380 Scorpious Court, Merritt Island, or to refund any payments made for Case #96-1997 and Case #96-0998. Motion carried and ordered unanimously.

RESOLUTION, RE: CONSIDER TAX ABATEMENT APPLICATION OF DRS OPTRONICS, INC.

Commissioners Voltz and O'Brien advised the company is involved in design, development, testing and production of electro-optical and laser systems; it employs 240 engineering and design workers; because of increased demands, it is expanding at a separate facility, will maintain full operations in Melbourne and Palm Bay, and will hire 100 additional employees at average annual salary of $38,000.

Commissioner Carlson inquired if there is a way to bring additional analysis forward versus waiting until the ordinance is considered; with Economic Development and Legislative Affairs Director Greg Lugar responding he does not think it is an issue, as EDC did the economic impact analysis ahead of time on this company and sent it to each Commissioner's office. Commissioner Carlson inquired if that is going to be the rule; with Mr. Lugar responding he believes they will get out in front on each of the applications because the Board previously requested that information be provided to make a determination at step 1 rather than wait until the end.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt Resolution qualifying DRS Optronics, Inc. as an eligible business under the County's Tax Abatement Program and authorizing a public hearing to consider adoption of a tax exempt ordinance on behalf of DRS Optronics, Inc. Motion carried and ordered; Commissioner Higgs voted nay.

RESOLUTION, RE: REQUESTING STATE COST-SHARE FUNDING FOR SHORE PROTECTION PROJECT

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to adopt Resolution supporting the Brevard County Shore Protection Project, and requesting the State cost-share funding as a match for the dedicated local funds; and approve the long-range budget plan to be submitted to Florida Department of Environmental Protection as a grant request for FY 2001-2002. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - DAN JONES, ANITA'S TROPICAL FLOWERS, RE: PROBLEMS AND TIMELINE REPAIRS-SPILL INCIDENTS OF SEPTIC SYSTEM

Dan Jones advised he bought Anita's Flower Shop when it was in Courthouse Square in 1995; in 1996, he moved it to 140 W. Merritt Island Causeway with the purchase of the Tropical Flower Shop; and he combined the two shops as Anita's Tropical Flowers. He stated Mrs. Smith was the original owner of Tropical Flower Shop; he leased it with Popeye's Restaurant as his neighbor to the east; it is a 100% fry restaurant on a septic system; and that is a problem waiting to blow up. He stated the septic system failed on January 21, 1994; no problems could be found in the County records between 1983 until 1994, which does not mean they did not exist; but on January 21, 1994, Mrs. Smith, who was the owner at the time, sustained substantial damage to the property and greenhouse which was the adjacent unit at the back of the building because raw sewage floated through the whole building. He stated according to the documentation, the County made Popeye's repair the problems in 1995; however, the documentation missed an incident in 1996. He stated on May 12, 1997, the County received a complaint; it was a dumpster problem because Popeye's was putting raw chicken in it and he could not stand the odor; and Popeye's had a break in its sewer at that time which is not documented. He stated on August 10, 1998, the sewer broke; because of the way the breakage has been fixed over the years, they continued to mound higher and higher so the property sits lower to the west and the water runs down hill; and when it broke, they flooded the property and his business with dirty water around Mothers Day. He stated it broke in August and again in November; in November County staff made them spend about $30,000 to revamp the leach field; and inquired why did the County not make them do that in May which would have avoided the problems in August and November. He stated the County's sanitary engineers agreed there was a problem; they came up with a solution; and they certified the system to be true, safe and just; but three months later it broke again, and Popeye's did what the Engineering Department said to do and the County certified the system again to be true, safe and just. Mr. Jones stated he filed a lawsuit against Popeye's; and advised of their insurance coverage. He inquired what did the County not do to protect him in May and August. He stated the County report says, "we don't find this to be a nuisance situation"; it would have had to be labeled a nuisance in order to force them to do what the County did which is to drag sewer to the property; there is no lift station there; and if the County did its job correctly in the first place, he would be talking about one incident instead of three. He stated the County never closed the restaurant for the four days it took to fix each time so whenever they flushed the toilet, washed their hands, or did anything, the water went in at the bottom and stuff came out at the top, and he continued to have a problem for four days because the County never stopped them from frying chicken. He stated he understands it had to involve the Department of Business and Professional Regulations and the Health Department so there were multiple Departments, but all the reports were made between 9:00 a.m. and 5:00 p.m. during the week. He stated the last time he was before the Board he said if it was not fixed he would go to the news; he went to Channel 6 News with Yvonne Martinez; the following morning at 7:00 they had enough equipment to dig a hole to China and fixed the situation; so the County did not fix the situation in his estimation, but Popeye's did at their cost after the general public viewed the news the night before. Commissioner Voltz inquired if the problem was fixed; with Mr. Jones responding yes, to the best of his knowledge, as he is no longer there and sold the business. He stated sewer will be coming that will solve Popeye's problem, but it does not solve Popeye's previous indiscretion to him.

Commissioner Voltz advised the report says the County has no records that effluent has run onto Anita's Tropical Flowers' property; and requested an explanation.

Cheryl Dunn, Environmental Health Services Manager, advised the effluent basically breaks out from the bottom of the mound most of the time; and it was running down the driveway into the road in the pictures staff has that document the breakout of sewage from the drain field mound. She stated they do not have any record of the incident Mr. Jones referred to in May, 1998; and there was no report made to their office of that situation or it would be in their complaint log. She stated in August, 1998, the drain field was failing because of grease and was replaced; the failure that happened several months later was a mechanical failure of the pump system which is separate from the drain field; and the pumps were working at the time the repair was done in August, 1998. Ms. Dunn advised during the repairs the tanks were pumped out on a daily basis to prevent effluent from going onto the ground, so it was not creating a sanitary nuisance; and the Department of Business and Professional Regulations and restaurant inspectors were out there when staff was out there.

Permitting and Enforcement Director Billy Osborne advised staff monitored that location on a daily basis at first, then several times a week; and now that Popeye's is in the process of connecting to the sewer system, they monitor the system once a week. Ms. Dunn stated they did daily inspections at the site for one year as part of the monitoring program. Commissioner O'Brien inquired if Popeye's was charged for the service; with Ms. Dunn responding no, the Department is responsible for monitoring commercial systems according to the annual operating permit. County Manager Tom Jenkins advised the monitoring was a result of a meeting with Mr. Jones; Popeye's did not request it; and it was being done as a public safety and health issue to make sure a problem was not occurring.

Commissioner Carlson inquired if over that one year new information brought out a potential compromise of the flower shop's drain field based on problems Popeye's was having; with Ms. Dunn responding she is not aware of where the flower shop's septic system or drain field is, as they have not been to that property to look at the situation with its system. Commissioner Carlson inquired if Mr. Jones knows where the drain field is; with Mr. Jones responding it is in the grassy area between the two properties; the flower shop's property line sits approximately two feet outside of the greenhouse that has a chain link fence around it; there is an open area with a half wall; and the septic system sits inside of that and has been pumped twice during the time he was the lessee, and never failed. Commissioner Carlson stated since it did not fail, Mr. Jones would not know if there was intrusion from the other septic field; with Mr. Jones responding the way the mound is, the dirty water ran into the greenhouse where he had plants; and he sustained damages in excess of $55,000 due to loss of business by having to close early and sending employees home. He stated it is true that staff checked the situation; however, the policy was not implemented until December 1998 after the third incident according to his records and second incident according to the County's records. He stated it was not monitored between August and November to prevent future occurrences and the County waited until it actually created a real problem.

Commissioner O'Brien stated the Board has been talking about it and going nowhere; and inquired what action Mr. Jones wants the Board to take. Commissioner Voltz inquired when did staff start doing daily inspections; with Ms. Dunn responding this situation has to do with the repair permit process and monitoring that occurred until the repair was completed.

Commissioner Scarborough inquired if raw sewage seeped into neighboring properties; with Ms. Dunn responding nothing seeps out if it is pumped out. Mr. Jenkins advised from the first time the system failed, Popeye's has held the effluent in the tank and pumped it out on a daily basis. Commissioner Scarborough stated Ms. Dunn made the comment it was not going into the neighbor's property and was going in the street; that is something that takes place in third-world countries; and he does not think Brevard County wants to regress to that. He stated septic systems work, but if they do not work, there are health issues and unsanitary conditions; and inquired about the effect on people eating at Popeye's at the time; with Ms. Dunn responding the restaurant was put on official notice at the time it occurred and given a time frame to comply; they were mandated to keep the area clean and dry and not create a sanitary nuisance; and the Department of Business and Professional Regulations was immediately notified and has the authority to close the restaurant but did not.

Chairman Higgs stated there was effluent on the driveway which was cleaned up; Popeye's was on notice to keep it clean; it was monitored; the Business and Professional Regulations Department continued to go out there and inspect the situation; it chose not to close the restaurant down; the tank was pumped daily until it was repaired; and inquired if that is what happened; with Ms. Dunn responding that is correct.

Commissioner O'Brien stated the County did what it had to do; there was only one spill on the ground; the County made the restaurant clean it up; and the second time it did not come up on the ground. Ms. Dunn stated there was effluent on the ground the second time when the pump malfunctioned, but it was addressed that day. Commissioner O'Brien stated Popeye's cleaned it up that day and fixed the problem; they did the best they could to solve their problem; unfortunately, their problem affected Mr. Jones' business; and his present recourse is to take it to court. Mr. Jones stated they fixed the situation and pumped during the repairs, but by his timeline it took until the following morning to get enough people together to fix the problem, and meanwhile the restaurant has been open and operating; and they did not have a septic company out there pumping during that time, because every time they flushed their toilet, he got more water.

Mr. Jenkins advised since the incident of August, 1998, the policies and procedures of Environmental Health Services have been modified to ensure there is an immediate response as opposed to allowing several hours to elapse. Mr. Jones stated the County adjusted its policies because it could not prove it notified Popeye's, and now it requires certified mail and a hand-carried notice with a signature.

Commissioner O'Brien stated the system has been improved and the County met its responsibilities; Mr. Jones' activities in the future are legal matters; and the damages to his business were not done by the County. Mr. Jones stated the damages were caused by Popeye's, but the timeline and lack of response of the County contributed to it; the situation has been modified since then and if it happened today, things would happen faster; but it happened three times to his knowledge. He stated the County contends it was not a nuisance property, but he considers four failures over a period of five years to be a nuisance; there are no failures recorded from 1983 to 1994, but from 1994 to 1999 there were four failures, and he does not understand why the County does not consider it a nuisance.

Chairman Higgs instructed the County Manager to send each Commissioner a summary of how the policies were changed and the reactions. Mr. Jones requested a copy of the policies also.

Doug Robertson advised the sewer system is installed and has been for several weeks; and it has been accepted by the County so connection for Popeye's is imminent.

PERSONAL APPEARANCE - DOUG ROBERTSON, RE: MODIFICATION TO ZONING CODE TO ALLOW BAY WINDOWS TO ENCROACH IN SIDE SETBACKS

Doug Robertson, representing Bill Bailey, advised his client was cited for a Code violation because his bay window extends somewhat into the side setback; in his research and meeting with County staff, he became aware that the problem exists throughout the County; often bay windows are not included on the building plans, are not looked at until after the fact, or are added to the construction package after review; and those have caused a problem for staff and his client. He stated Mr. Enos advised the current Code allows certain encroachments into setbacks for chimneys, stairs, fire escapes, air conditioning units, windmills, etc.; and Mr. Enos felt perhaps bay windows could be considered as part of that grouping. He requested the Board ask staff to look into that to see if it is appropriate to include bay windows as part of the exemptions from setbacks.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct staff to look at including bay windows as exemptions to encroachments into setbacks.

Commissioner O'Brien stated if the list becomes comprehensive, eventually the setback will have no meaning. Commissioner Carlson inquired if the LPA is looking at kitchens in the Great Outdoors now; with Mr. Enos responding that has been completed. Chairman Higgs stated the listed exceptions are non-living spaces; if the Board allows bay windows, that would be living space; and if they are allowed, it may as well change the setbacks because that is in essence what it would be doing, so she cannot support the motion.

County Manager Tom Jenkins requested the Board, as a majority, consider whether it has an interest in doing this because it is just another task staff would have to assume if there is no interest. Commissioner Carlson stated she is not interested in including bay windows. Commissioner Scarborough requested Mr. Enos comment on it.

Zoning Official Rick Enos advised staff has some concerns, primarily in subdivisions with small lots that have setbacks as small as five feet on the side lot line; Building Official John Smith said typically bay windows may project an average of 18 to 24 inches from the side of the house; so it would leave a setback of three feet which is pretty close to the side lot line. He stated the Building Code prohibits doors or windows opening within three feet of the lot line; so bay windows could not go any closer than three feet without violating the Building Code; and other than that, he has no objection looking into it.

Commissioner Scarborough withdrew the motion; and the Board took no action to include bay windows as exemptions to encroachment into setbacks.

REPORT, RE: ODYSSEY OF THE MIND CORRECTION

Commissioner Carlson advised she said that Malabar Elementary did the exhibit she watched that was quite amazing; however, she was told it was Johnson Junior High School, so she would like to make that correction.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 12:41 p.m.

ATTEST:

NANCY HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)